United States District Court, E.D. Virginia, Alexandria Division
O'GRADY, District Judge.
Altony Newsome, a Virginia inmate proceeding pro se, filed a
petition for a writ of habeas corpus, pursuant to 28 U.S.C. Â§
2254, challenging the constitutionality of his convictions
entered in the Circuit Court for the City of Hampton,
Virginia. On August 20, 2015, respondent tiled a Rule 5
Answer accompanied by a Motion to Dismiss and supporting,
brief. Dkt. Nos. 14, 15, 16. Petitioner was given the
opportunity to file responsive materials. pursuant to
Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975),
and he has tiled a response. Dkt. No. 20. Accordingly, this
matter is now ripe for disposition. For the reasons that
follow, respondent's Motion to Dismiss must be granted,
and the petition must be dismissed.
a jury trial, petitioner was found guilty of two counts of
rape in the Circuit Court for the City of Hampton on October
4, 2012. The victim in both cases was C.S-F., the daughter of
petitioner's friend. The trial court imposed a
16-year sentence on January 14, 2013. Case
Nos. CR10M01010-04 & CR10M01010-06.
appealed to the Court of Appeals of Virginia, which refused
his petition on August 13, 2013. Rec. No. 0727-13-1. The
Court of Appeals describes the underlying facts as Follows:
[The evidence proved that in 1988 the victim was eleven years
old and appellant was the victim's mother's
boyfriend. In 1988, the victim lived in the Cherry Acres
neighborhood. The victim testified appellant initially kissed
her and showed her his penis. The victim testified appellant
entered her bedroom at night, rubbed her legs, and inserted
his penis into her vagina. The victim testified appellant
also inserted his penis into her vagina when she lived on
Victoria Boulevard in 1991. The victim testified after the
1991 incident, she told her mother and a guidance counselor,
and a police officer investigated, but her mother dropped the
charge. The victim testified her mother told her to block the
bedroom door with a stereo. The victim testified she also
told her friend. T.S., about the sexual abuse. The victim
testified Detective Randy Mayer contacted her in 2010. During
cross-examination, appellant pointed out inconsistencies in
the victim's testimony with statements she gave to the
police in 2010 and her preliminary hearing testimony.
According to the 2010 police report, the incidents occurred
in 1990 and 1991 while she was living on Victoria Boulevard.
T.S. testified she knew the victim when they were in middle
school and the victim told her that appellant was molesting
her. Dr. Viola Vaughan-Eden, a specialist in the field of
children's responsive behaviors to sexual abuse,
testified it was normal for a child to delay reporting
incidents of sexual abuse, there would be a catastrophic loss
of self-esteem if a mother ignored a child's report of
sexual abuse, and inconsistencies in details were normal when
it was a number of years since the sexual abuse occurred, but
an individual would remember that the sexual abuse occurred.
of App., Aug. 13, 2013 Order at 3-4. The Supreme Court of
Virginia refused petitioner's subsequent petition for
appeal on January 24, 2014. Rec. No. 131406.
to the direct appeal, the Supreme Court of Virginia received
petitioner's state habeas petition on August 14, 2014,
in which he claimed:
(1) The trial court erred in denying his motion to set aside
(2) Petitioner was denied the effective assistance of
(a) because counsel failed to investigate petitioner's
claim that he was incarcerated at the time he was alleged to
have raped the victim.
(b) because counsel operated under a prejudicial conflict of
(c) because counsel failed to impeach the victim.
(3) Petitioner was the victim of prosecutorial misconduct:
(a) because prosecutor knowingly used the victim's